Memphis & Cincinnati Packet Co. v. Pikey
| Decision Date | 25 April 1895 |
| Docket Number | 16,970 |
| Citation | 40 N.E. 527,142 Ind. 304 |
| Court | Indiana Supreme Court |
| Parties | The Memphis & Cincinnati Packet Co. v. Pikey, Administratrix |
Petition for Rehearing Overruled October 17, 1895.
From the Dearborn Circuit Court.
Judgment affirmed.
C. F Hayes, Johnson & Levy and W. H. Jones, for appellant.
McMullen Johnston & McMullen, for appellee.
This action was brought in Dearborn Circuit Court by the appellee, a foreign administratrix, against appellant, a foreign corporation, to recover damages for the death of Charles Pikey, under section 284, R. S. 1881, section 285, R. S. 1894, which is as follows:
The case was tried upon the first, third and fifth paragraphs of complaint; the other paragraphs were either abandoned at the trial, or demurrers to the same were sustained.
The three paragraphs mentioned each charge in different ways, that the appellant is a foreign corporation and was the owner of a line of steamboats, navigating the Ohio and Mississippi rivers from the city and port of Cincinnati, Ohio, to the city and port of Memphis, Tennessee; which boats were managed and run by appellant for the shipping, transportation and carrying of passengers and freight as common carriers for compensation and hire to and from said cities and to and from all intermediate cities, towns, wharves, and landings upon said rivers; that on the 23d of February, 1892, and long before that time and up to the commencement of this action, the wharfboat at Aurora and the wharfboat at Lawrenceburg, in Dearborn county, Indiana, were wharfboats upon which appellant discharged and received freight and passengers, carried for hire to and from said ports, and the said wharfmasters received and delivered freight for said appellant during all of said time; and that the appellant, by her clerks and captains of the several boats aforesaid, received and delivered freight and passengers at Aurora and Lawrenceburg in Dearborn county, Indiana; that one of the boats so operated by appellant was the "John K. Speed," and that while said steamboat was making a return trip from said city of Memphis to said city of Cincinnati, being then and there owned and operated by appellant, Charles Pikey, appellee's intestate, on February 23, 1892, took passage on said steamboat at the town of Point Pleasant in the State of Missouri, for said city of Cincinnati, and for said purpose purchased from appellant a ticket, in consideration of which the appellant agreed to safely convey said Pikey from said point in Missouri to said city of Cincinnati; that on [142 Ind. 307] --- day -----, while said boat was proceeding on its way to Cincinnati and when said steamboat "John K. Speed" was at a point on the Ohio river opposite the county of Dearborn, State of Indiana, which point is also opposite the county of Boone in the State of Kentucky, and while said Pikey was still a passenger on said boat, he was shot and mortally wounded by the second mate on said boat, from which wound he died in Dearborn county, Indiana, on the next day; that the death of said Pikey was caused by the negligence and carelessness of appellant, as alleged in the several paragraphs, and that said Pikey and the appellee were each wholly without fault and in no way contributed to the said injury or death in any way; that said Pikey left surviving him a widow and two children; that he was a citizen and resident of New Madrid county, Missouri; that appellee was duly appointed, by the probate court of said county, administratrix of his estate.
Appellant entered a special appearance and filed a motion supported by affidavits, to set aside the service of summons, which was overruled. The court, on the motion and affidavit of appellant, required appellee to file an undertaking for costs, which was approved. Thereupon appellant filed a special answer as to the jurisdiction of the court over the person of appellant, to which a demurrer was filed and sustained. Appellant filed a demurrer to each paragraph of complaint which was overruled as to the first, third, fifth, and sixth paragraphs and sustained as to the other paragraphs. Answer in four paragraphs was filed, the fourth paragraph being a general denial, a demurrer was filed and sustained to the first, second, and third paragraphs of answer, to all of which rulings proper exceptions were taken. The cause was tried by a jury and a verdict returned for appellee, and, over a motion for a new trial, judgment was rendered against appellant.
Appellant assigns as error:
1. That the court had no jurisdiction of the person of the defendant.
2. The court had no jurisdiction of the subject-matter of the action.
3. The court erred in overruling appellant's motion to set aside the service of summons.
4. The court erred in sustaining the demurrer to appellant's plea to the jurisdiction of the court.
5. That the court erred in overruling the demurrer to each of paragraphs one, three, five and six of the complaint.
6. That the court erred in sustaining the demurrer to each of paragraphs one, two and three of the answer.
7. That the court erred in overruling the motion for new trial.
Appellant contends that the court below had no jurisdiction over the subject-matter of the action for this reason, that the injury was inflicted outside of the territorial limits of the State of Indiana, and within the State of Kentucky; that, therefore, section 284 (285), supra, has no application in this case; that the right of action, if any, must depend upon the laws of Kentucky and not upon the laws of this State. The theory of the defense is that this State has no jurisdiction over the Ohio river beyond low water mark on the Indiana side of the river. It is settled that low-water mark on this side of the Ohio river is the boundary line between this State and Kentucky. Handly's Lessee v. Anthony, 18 U.S. 374, 5 Wheat. 374, 5 L.Ed. 113; Indiana v. Kentucky, 136 U.S. 479, 34 L.Ed. 329, 10 S.Ct. 1051; Carlisle v. State, 32 Ind. 55; McFall v. Commonwealth, 2 Metc. (Ky.) 394.
It is provided, however, by an act of the commonwealth of Virginia, entitled "An act concerning the erection of the district of Kentucky into an independent State (passed December 18, 1789,), that the use and navigation of the Ohio river, so far as the territory of the proposed State or the territory which shall remain within the limits of this commonwealth lies therein, shall remain free and common to the citizens of the United States; and the respective jurisdiction of this commonwealth and of the proposed State, on the river as aforesaid, shall be concurrent only with the States which may possess the opposite shores of said river." Revised Laws of Virginia, Vol. 1, p. 59; 1 G. & H. p. 57; 3 R. S. 1894, p. 886.
In Handly's Lessee v. Anthony, supra, the supreme court of the United States referring to this act, by Marshal, Chief Justice, said that "The compact with Virginia under which Kentucky became a State, stipulates that the navigation of and jurisdiction over the (Ohio) river shall be concurrent between the new States * which may possess the opposite shores of the said river."
This State has asserted this jurisdiction in section 2, article 14, of the constitution (Section 222, R. S. 1881; section 222, R. S. 1894), which declares that the State of Indiana "shall have concurrent jurisdiction in civil and criminal cases with the State of Kentucky on the Ohio river, and with the State of Illinois on the Wabash river so far as said rivers form the common boundary between this State and said States respectively." The general assembly has assumed the same jurisdiction. 1 G. & H. section 93, p. 190, section 96, p. 191; sections 1578, 1579 and 4207, R. S. 1881; sections 1647, 1648 and 5544, R. S. 1894, R. S. 1843, p. 66.
It has been uniformly held by this court that the State possesses jurisdiction for the enforcement of the civil and criminal laws of the State on the Ohio river, where it constitutes the southern boundary of the State. Rorer Interstate Law, p. 343-4; Carlisle v. State supra; Dugan v. State, 125 Ind. 130 (9 L.R.A. 321, 25 N.E. 171); Welsh v. State, 126 Ind. 71 (9 L.R.A. 664, 25 N.E. 883); Sherlock v. Alling, Admr., 44 Ind. 184, and authorities cited. In Sherlock v. Alling, Admr., supra, a case like the one before us, this court held that section 284, R. S. 1881, (285), R. S. 1894, supra, was general and extended over all territory over which the State of Indiana has exclusive or concurrent jurisdiction, that it applies to cases where death is caused by wrongful acts or omissions on vessels while navigating the Ohio river where the same forms the boundary of this State. It is clear from the authorities cited, that this State had concurrent jurisdiction over the Ohio river at the point where it is alleged the death of appellee's intestate was caused by the wrongful acts of appellant. The only difference is that over the territory within the boundaries of the State the jurisdiction is exclusive, while on the Ohio river it is concurrent with Kentucky. It necessarily follows that the law which governs this case, including the service of summons and return, is the same as if the Ohio river was wholly within the ...
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